In Chief Justice Roberts' dissent: Route now wide open to multi-marriage.
And how the language in his dissent may help bring it about.
A new era for relationship rights began yesterday at the Supreme Court, and for better or for worse, we're next.
In his dissent to the Obergefell decision establishing gay marriage nationwide, Chief Justice John Roberts fired the opening shot from the right, calling out plural marriage and polyamorous relationships specifically.
From his dissent:
One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman, 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 144117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J.
I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.
Analyst James McDonald has written,
On record, a Chief Justice has stated that:
-- Restricting marriage to couples is an arbitrary choice.
-- Plural marriages can be the product of consenting, autonomous adults, and their choice to marry is a "profound" one.
-- Children of plural marriages are subject to harmful stigma under our current legal paradigm.
-- Individuals can find fulfillment in polyamorous relationships. (Again, he didn't say polygamous relationships.)
-- Not being given the same opportunities as individuals in other relationships disrespects and subordinates individuals in polyamorous relationships.
All of these points can be used in arguments for equality beyond marriage equality — any debate over whether poly people can be denied housing, employment, or custody of children can reference Roberts' statement.
Indeed, this looks like a parallel to Justice Antonin Scalia's dissents to the court's Windsor (2013) and Lawrence (2003) decisions, in which Scalia darkly spelled out the ways in which those rulings would logically lead to requiring gay marriage nationwide. Much to Scalia's dismay, one would think, lower courts cited his language when justifying their extending gay marriage to more states. Lower courts take seriously statements from a Supreme Court justice as to what a law logically requires.
Watch for the same thing to happen with Roberts' dissent.